McDowell v. The Board of Trustees for Perry Township, Stark County, Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

F. DYANN MCDOWELL, et al., :

:

Plaintiff, : Case No. 2:23-cv-02860

:

v. : Judge Algenon L. Marbley

:

THE BOARD OF TRUSTEES FOR : Magistrate Judge Kimberly A. Jolson

PERRY TOWNSHIP, STARK COUNTY, :

OHIO, et al., :

Defendants. :

OPINION & ORDER

This matter is before this Court on Plaintiff’s Motion to Dismiss All Federal Claims and

Remand Case to State Court (“Motion”). (ECF No. 46). For the reasons set forth below, the Motion

is GRANTED in part and DENIED in part.

I. BACKGROUND

In August 2023, Plaintiffs F. Dyann McDowell (“McDowell”) and Training Marbles, Inc.

(“TMI”) filed a complaint in the Court of Common Pleas in Franklin County, Ohio. (ECF No. 2).

The case arises from Defendant Perry Township entering into a service agreement to retain TMI

to conduct a human resources assessment. (Id. ¶ 17). Allegedly, before the assessment there were

concerns that Defendant Michael T Pomesky, former Perry Township Chief of Police, retaliated

against others. (Id. ¶ 23).

During the assessment, McDowell interviewed Perry Township employees, and some

allegedly expressed concerns about potential retaliation by Pomesky if the employee participated

in the interview. (Id. ¶¶ 22, 24). Plaintiffs state McDowell notified Perry Township of her concerns

about Pomesky, and Perry Township signed an agreement for TMI to investigate Pomesky. (Id. ¶¶

31, 32). McDowell told Pomesky she was notified that a LEADS, a confidential system used by

law enforcement to run checks on people, was pulled on her. (ECF No. 34 at 13–14). Pomesky

claims he felt obligated to investigate because unauthorized inquiries lead to terminations,

suspensions, and felony charges. (ECF No. 32 at 154, 168–69). The investigation was marked as

non-criminal. (ECF Nos. 2 ¶ 45; 35 at 7).

Pomesky continued the investigation on McDowell, concluded McDowell’s report was

false, and took his complaints to the local prosecutor who found probable cause existed for

falsification and obstruction of justice. (ECF Nos. 2 ¶¶ 45, 46; 35 at 7). Pomesky’s investigation

led to charges against McDowell for misdemeanor falsification and obstructing official business

and an arrest warrant for McDowell’s arrest on August 10, 2022. (ECF Nos. 2 ¶ 51). McDowell

turned herself in and spent 36 hours incarcerated at the Franklin County Corrections Center. (Id. ¶

66). The charges were eventually dismissed in McDowell’s favor. (Id. ¶ 53). McDowell was

released on August 12, 2022. (Id. ¶ 68).

On August 16, 2022, Pomesky was allegedly placed on administrative leave in part because

of McDowell’s arrest. (Id. ¶69). Pomesky remained on leave until his employment was terminated

by the Perry Township police in October 2022. (Id. ¶ 71).

Plaintiffs bring eleven claims against Defendants the Board of Trustees for Perry Township

and Pomesky. The claims are for false arrest under § 1983 and Ohio law and malicious prosecution

under § 1983. Plaintiffs also bring the “alternate” claim of abuse of process against Pomesky.

Other state law claims include a claim for intimidation , intentional infliction of emotional distress,

negligent retention/supervision, breach of contracts, civil liabilities for criminal acts under Ohio

law, and Monell claims. (ECF No. 2).

The case was removed by Defendant Pomesky on September 5, 2023, for federal question

jurisdiction. (ECF No. 1). On September 25, 2023, Defendants moved to transfer venue to the

Northern District of Ohio. (ECF No. 9). Plaintiffs opposed and the motion was denied. (ECF Nos.

13; 18).

A Preliminary pretrial order was entered making discovery due by March 29, 2024, and

dispositive motions due by April 26, 2024. ( ECF No. 12). On March 7, 2024, Pomesky filed a

joint motion for extension which was granted and pushed the discovery deadline to May 29, 2024,

and dispositive motions deadline to June 28, 2024. (ECF Nos. 20; 21). On June 27, 2024, another

joint motion to extend dispositive motion deadlines was filed and granted. (ECF Nos. 26; 27). The

dispositive motion deadline was set for July 12, 2024. (ECF No. 27).

On July 12, 2024, Defendants filed their motions for summary judgment. (ECF Nos. 30;

33; 35). Plaintiffs requested extensions of time to respond with the latest deadline being August

30, 2024. (ECF Nos. 39; 44).

On August 28, 2024, Plaintiffs filed the Motion, requesting dismissal of the federal claims

and remand. (ECF No. 2). The claims Plaintiffs seek to dismiss are:

• Claim One for False Arrest under 42 U.S.C. § 1983;

• Claim Three for Malicious Prosecution under 42 U.S.C. § 1983; and

• Claim Eleven seeking to hold Defendant The Board of Trustees for Perry Township, Stark,

County, Ohio liable for Claim One and Claim Three under Monell and 42 U.S.C. § 1983.

(ECF No. 46-1). Only Defendant Pomesky opposed the Motion. (ECF No. 51).

II. STANDARD OF REVIEW

Plaintiffs seek voluntary dismissal of the federal claims without prejudice pursuant to

Federal Rule of Civil Procedure 41(a)(2). Rule 41(a)(2) provides that “an action may be dismissed

at the plaintiff's request only by court order, on terms that the court considers proper.” It is within

the court’s “sound discretion” to grant a Rule 41(a)(2) motion for a voluntary dismissal. Walther

v. Fla. Tile, Inc., 776 F. App'x 310, 315 (6th Cir. 2019) (citing Grover by Grover v. Eli Lilly &

Co., 33 F.3d 716, 718 (6th Cir. 1994)). The Sixth Circuit finds that “[t]he primary purpose of Rule

41(a)(2)’s requirement of a court order is to protect the nonmovant from unfair treatment.” Id.

Unless the order granting dismissal states otherwise, such a dismissal is without prejudice. F. R.

Civ. P. 41(a)(2).

Dismissal without prejudice is appropriate unless “the defendant would suffer plain legal

prejudice . . . as opposed to facing the mere prospect of a second lawsuit.” Walther, 776 F. App'x

at 315 (quoting Grover, 33 F.3d at 718). To determine whether the defendant will suffer legal

prejudice as a result of dismissal without prejudice, a court should consider: (1) how much effort

and expense the defendant has expended in the matter; (2) any lack of diligence on the plaintiff’s

part in prosecuting the case; (3) whether the plaintiff has given sufficient explanation of her need

to take a dismissal; and (4) whether the defendant has moved for summary judgment (the “Grover”

factors”). Id.

Provided a district court has “dismissed all claims over which it had original jurisdiction”

it “may decline to exercise supplemental jurisdiction.” 28 U.S.C. § 1367(c)(3). “When all federal

claims are dismissed before trial, the balance of considerations usually will point to dismissing the

state law claims, or remanding them to state court if the action was removed.” Basista Holdings,

LLC v. Ellsworth Twp., 710 F. App'x 688, 694 (6th Cir. 2017) (quoting Musson Theatrical, Inc. v.

Fed. Exp. Corp., 89 F.3d 1244, 1254–1255 (6th Cir.1996)).

III. LAW & ANALYSIS

A. Dismissal of Federal Claims

As an initial matter, the Sixth Circuit has recognized that the scope of Rule 41 is “unclear.”

Letherer v. Alger Grp., LLC, 328 F.3d 262, 266 (6th Cir. 2003). In Letherer, the court found that

“Rule 41(a)(1) provides for the voluntary dismissal of an ‘action’ not a ‘claim’; the word ‘action’

as used in the Rules denotes the entire controversy, whereas ‘claim’ refers to what has traditionally

been termed ‘cause of action.’” Id. (quoting Philip Carey Mfg. Co. v. Taylor, 286 F.2d 782 (6th

Cir.)). That said, the court in Baker v. City of Detroit, 217 F. App'x 491 (6th Cir. 2007), found

that an amendment pursuant to Rule 15 is the appropriate way to dispose of fewer than all claims

and noted that “it is not unusual for motions styled as Rule 41 motions or motions to dismiss to be

construed as Rule 15 motions for leave to amend.” 217 F. App'x at 496–97 (quoting Mgmt.

Investors, 610 F.2d at 394–95).

Also, unlike Rule 41(a)’s dismissal of an “action,” Rule 21 provides that “[p]arties may be

dropped or added by order of the court on motion of any party or of its own initiative at any stage

of the action and on such terms as are just.” Fed. R. Civ. P. 21. Many courts construe motions for

voluntary dismissal of individual defendants or individual claims as a motion to dismiss under

Rule 21. See, e.g., id. Eng. v. Equifax Info. Servs., LLC, No. 1:24-cv-240, 2024 WL 3581052, at

*1 (S.D. Ohio July 30, 2024) (“Instead, Federal Rule of Civil Procedure 21 is the proper vehicle

for dismissing some—but not all —claims or parties.”); Wilkerson v. Brakebill, No. 3:15-cv-435,

2017 WL 401212, at *2 (E.D. Tenn. Jan. 30, 2017) (“Thus, the Court finds it appropriate to apply

Rule 21 in this matter, where plaintiffs move to voluntarily dismiss one of several claims.”);

Griesmar v. City of Stow, Ohio, No. 5:20-CV-01356, 2021 WL 2581563, at *3 (N.D. Ohio June

23, 2021), aff'd, No. 22-3151, 2022 WL 17581658 (6th Cir. Dec. 12, 2022) (“To dismiss fewer

than all claims or parties from an action falls to Rule 21.”); Bernard v. City of Cleveland, No. 1:21-

cv-1103, 2022 WL 4367655, at *1 (N.D. Ohio Sep. 21, 2022) (“To dismiss fewer than all claims

or parties from an action falls to Rule 21.”); Mills v. Cvitkovich, No. 3:23-CV-280, 2024 WL

4452278, at *1 (S.D. Ohio Oct. 9, 2024)(“A plaintiff seeking to dismiss only one defendant from

an action must move the Court to do so under Rule 21.”) (quoting Sheet Metal Workers' Nat'l

Pension Fund Bd. of Trs. v. Courtad, Inc., No. 5:12-cv-7238, 2013 WL 3893556, at *4 (N.D. Ohio

July 26, 2013)); Ledbetter v. Schottenstein Prop. Grp., LLC, No. 2:20-CV-1037, 2023 WL

8649895, at *1 (S.D. Ohio Dec. 14, 2023) (analyzing a 41(a)(2) motion to dismiss individual

claims as a motion under Rule 21).

Due to the different approaches to construing Rule 41(a)(2) motions to dismiss individual

claims, Plaintiffs’ Motion to Dismiss will be construed as both a Rule 21 motion and a Rule 15

motion seriatim.

1. Rule 15 Amendment

Because the Motion only involves dismissal of claims, not parties, this Court finds applying

Rule 15(a) more compelling. Compare Letherer v. Alger Grp., LLC, 328 F.3d 262, 266 (6th Cir.

2003) (characterizing a partial dismissal of parties as a motion under Rule 21 rather than Rule 41);

with Mgmt. Investors, 610 F.2d 384, 394 (6th Cir. 1979) (finding a Rule 15 amendment to the

complaint rather than a Rule 41 motion is proper when seeking to dismiss some, but not all,

claims).

Under Rule 15(a), after the defendant has filed a responsive pleading, a plaintiff may only

amend its complaint by leave of court or with the written consent of the defendant. Fed. R. Civ. P.

15(a). Courts “freely give leave when justice so requires.” Id. In determining whether to permit

amendment, courts consider undue delay, bad faith or dilatory motive, repeated failure to cure

deficiencies by previous amendments, undue prejudice, and futility of amendment. Parchman v.

SLM Corp., 896 F.3d 728, 736 (6th Cir. 2018) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962).

The Sixth Circuit has noted that the “Circuit manifests ‘liberality in allowing amendments to a

complaint.’” Id. (quoting Newberry v. Silverman, 789 F.3d 636, 645 (6th Cir. 2015)). Further,

when the scheduling order deadline to amend without leave has passed, a plaintiff must first show

good cause under Fed. R. Civ. P. 16(b) for failing to abide by the scheduling order deadline before

the court will consider whether amendment is proper under Fed. R. Civ. P. 15(a). Korn v. Paul

Revere Life Ins., 382 F. App'x 443, 449 (6th Cir. 2010). In determining whether the “good cause”

standard is met, the district court must consider whether the amendment will prejudice the party

opposing it. Id.

Plaintiffs have sufficiently shown a lack of prejudice and established good cause to amend

the complaint. Indeed, discovery is over, and summary judgment motions have been file. Courts

generally hold that “allowing amendment months after the close of discovery and after dispositive

motions were filed and briefed” results in “significant prejudice” to the defendant. See Pittman v.

Experian Info. Sols., Inc., 901 F.3d 619, 642 (6th Cir. 2018). The “significant prejudice,” however,

is due in part to adding a claim or a new defendant. See, e.g., Siegner v. Twp. of Salem, 654 F.

App'x 223, 228–29 (6th Cir. 2016) (finding amendment after discovery and dispositive motion

deadline passed was significant prejudice when the plaintiff was long aware of additional claim

for the amended complaint). Courts note that this is because “allowing new claims ‘quite different’

from the original claims can result in significant prejudice to the defendants because of the need

to reopen discovery and to raise new defenses.” Armatas v. Haws, No. 21-3190, 2021 WL

5356028, at *4 (6th Cir. Nov. 17, 2021) (quoting Duggins v. Steak 'N Shake, Inc., 195 F.3d 828,

834 (6th Cir. 1999)).

The Motion here involves dismissing claims rather than adding claims or defendants.

Plaintiffs’ motion is based on pleading in the alternative: rather than continue to pursue both

federal and state law claims, Plaintiffs have decided to pursue the abuse of process claim and

request the dismissal of the inconsistent federal claims. (ECF No. 46 at 3). Further, the federal

claims Plaintiffs seek to dismiss from the complaint arise from the same facts as the state law

claims that Plaintiffs wish to continue pursuing. Allowing an amended complaint to dismiss the

claims will only remove the federal basis for Plaintiffs’ relief, it will not result in prejudice. See,

e.g., Satterwhite v. Ashtabula Cnty. Metroparks, 514 F. Supp. 3d 1014, 1023 (N.D. Ohio 2021)

(finding no prejudice where “state law claim arises from the same set of facts as [the plaintiff’s]

federal claim and will not require any more discovery on [the [defendant]'s part than its existing

discovery obligations. Further, it is not clear that adding . . . a named defendant would require

significantly more discovery on [defendant]’s part.”).

This Court also finds an amendment may be granted here when considering any undue

delay, bad faith or dilatory motive, repeated failure to cure deficiencies by previous amendments,

and futility of amendment. Nothing suggests Plaintiffs were the cause of considerable delay or

exercised any lack of diligence. Upon review of transcripts and depositions, Plaintiffs made this

Motion to conserve further resources. Plaintiffs have not made any other amendments, and,

Plaintiff is not adding any new claims, so futility is not at question.

This Court finds Plaintiffs’ Motion to Dismiss, when construed as a Rule 15 motion to

amend, should be granted. As noted, however, courts have also construed 41(a)(2) motions to

dismiss individual claims as Rule 21 motions. This Court finds it prudent to also analyze Plaintiffs’

Motion as a Rule 21 motion to dismiss and finds the result is the same.

2. Dismissal Under Rule 21

Courts recognize that “[a]lthough Rule 21 expressly concerns ‘severing’ claims. . . Rule 21

gives the Court discretion to both sever and dismiss claims ‘on just terms.’” Nutter v. Fam. Dollar

Stores of Ohio, LLC, No. 4:23-CV-1985, 2023 WL 9051700, at *2 (N.D. Ohio Dec. 28, 2023)

(quoting Dix v. Atos IT Sols. & Servs. Inc., No. 1:18-cv-275, 2021 WL 1165762, at *4 (S.D. Ohio

Mar. 25, 2021)). “The permissive language of Rule 21 permits the district court broad discretion

in determining whether or not actions should be severed.” Parchman, 896 F.3d at 733 (quoting

Johnson v. Advanced Bionics, LLC, No. 2:08-CV-02376-JPM, 2011 WL 1323883, at *6 (W.D.

Tenn. Apr. 4, 2011)). Courts consider several factors when determining whether to sever claims,

including:

(1) whether the claims arise out of the same transaction or occurrence;

(2) whether the claims present some common questions of law or fact;

(3) whether settlement of the claims or judicial economy would be facilitated;

(4) whether prejudice would be avoided if severance were granted; and

(5) whether different witnesses and documentary proof are required for separate claims.

The first, second, and fifth factors weigh against granting Plaintiffs’ Motion to dismiss the

federal claims. The federal claims and state law claims involve the same underlying facts and

common questions of law. The federal claims are § 1983 claims of false arrest and malicious

prosecution and Monell liability. The state law claims are similarly for false arrest and abuse of

prosecution. (ECF No. 2).

Nonetheless, the third and fourth factors weigh heavily in favor of granting the Motion.

Judicial economy would be facilitated, as Plaintiffs complaint is pled in the alternative. Pomesky

recognizes this in his Motion for Summary Judgment, arguing “McDowell’s own allegations

eliminate her abuse of process claim. McDowell alleges that Chief Pomesky caused her to be

arrested ‘without probable cause’” which is “inconsistent with showing an essential element of an

abuse of process claim—that the legal proceeding was initiated with probable cause.” (ECF No. at

22–23). Plaintiffs recognized the strength of the state law abuse of process claim over the federal

claims and requests that this Court dismiss the federal claims rather than adjudicating them. This

Court has noted that, generally, “alternative claims would need to be dismissed after a favorable

finding on . . . non-alternative claims because the alternative claims could not exist alongside the

non-alternative claims.” Stewart v. Martin, No. 3:21-CV-89, 2024 WL 278175, at *4 (S.D. Ohio

Jan. 25, 2024) (quoting Buckeye Recyclers v. CHEP USA, 228 F. Supp. 2d 818, 823 (S.D. Ohio

2002). In the interest of conserving party and judicial resources of continuing to adjudicate

alternative claims, Plaintiffs are voluntarily dismissing them and this Court does not find sufficient

reason to deny the request.

Now, this Court must address the fourth factor, prejudice. Courts recognize that “[a]lthough

Rule 21 expressly concerns ‘severing’ claims. . . Rule 21 gives the Court discretion to both sever

and dismiss claims ‘on just terms.’” Nutter, 2023 WL 9051700, at *2 (quoting Dix, 2021 WL

1165762, at *4). Applying Rule 41(a) or Rule 21 is thus a distinction without a difference because

“when evaluating a motion for dismissal under Rule 21, courts should consider Rule 41 standards

as guidance for analyzing potential prejudice to the non-movants.” Stewart, 2024 WL 1540401, at

*3 (quoting Murray Enery Corp. v. Cassidy, Cogan, Chappel, and Voegelin L.C., No. 2:18-cv-440,

2020 WL 4201666, at *2 (S.D. Ohio July. 22, 2020)); Nutter, 2023 WL 9051700, at *1; Dix, 2021

WL 1165762, at *4 n.4 (“[T]the Court's recognition that Rule 41 standards may apply to Rule 21

dismissals is not novel.”).

This Court, thus, must turn to the four Grover factors used to determine whether the

defendant will suffer legal prejudice as a result of dismissal without prejudice.

a. Defendant’s Effort and Expense

The first factor, the extent of Pomesky’s effort and expense here, weighs in Plaintiffs’

favor. Pomesky argued that, at the time of his Opposition, the case had been going on for almost

fourteen months, parties completed extensive discovery, parties engaged in mediation and motion

practice, and the case was transferred from state court once. (ECF No. 51 at 4). While this is true,

Plaintiffs do not seek to dismiss all claims.

When considering the effort and expense of the defendant, it is notable that “the prejudice

inquiry under 41(a)(2) is designed to protect defendants who have put considerable time and effort

into defending a case, only to have the plaintiff pull the rug out from under them by voluntarily

dismissing the action.” When applying Rule 21, this is less of a concern as the whole action will

not be dismissed. As Pomesky identifies, only two of the nine claims against him will be dismissed.

(ECF No. 51 at 3). Majority of the effort and expense will not be wasted. As a result, this factor

favors granting Plaintiffs’ Motion.

b. Plaintiffs’ Delay or Lack of Diligence

As to the second factor, the record does not suggest any delay or lack of diligence by

Plaintiffs in prosecuting this case. Pomesky argues that Plaintiffs excessively delayed seeking

dismissal and notes that Plaintiffs’ motion was filed after two extensions to respond to the motions

for summary judgment. (ECF No. 51 at 4–5). This cannot by itself show lack of diligence in

prosecuting the case.

Parties demonstrating excessive delay, for example, fail to comply with court orders or

deadlines. See e.g., Maldonado v. Thomas M. Cooley L. Sch., 65 F. App'x 955, 957 (6th Cir. 2003)

(finding that the Grover factors weighed heavily against a plaintiff who failed to appear to a court

ordered deposition, the last discovery matter before summary judgment); Smith v. Marten Transp.

Ltd., No. 219CV02135TLPDKV, 2020 WL 4284805, at *3 (W.D. Tenn. July 27, 2020) (finding

excessive delay and lack of diligence when Plaintiff did not timely comply with court orders).

In Maldonado, the Sixth Circuit held the factors weighed heavily against granting the

voluntary dismissal motion when discovery had closed, except for a deposition. Maldonado, 65 F.

App'x at 957. The plaintiff was ordered but failed to appear at the deposition. Id. at 956. The court

noted “[t]he defendants were almost certain to move for summary judgment after [the] deposition

was taken.” Id. at 957. The court also noted that the plaintiff waited until after judgment on the

pleadings were filed to request dismissal with a convoluted explanation for the request. (Id.). In

Smith, the plaintiff conceded to failing to comply with any of the Court's orders and blamed the

plaintiff’s local counsel. The court found the argument unconvincing and weighed this factor

against the plaintiff. Smith, 2020 WL 4284805, at *1 –*3.

In contrast, courts may weigh this factor in favor of a plaintiff when nothing suggests that

the plaintiff has not been diligent in pursuing claims. For example, the Sixth Circuit affirmed a

district court’s finding that the delay or lack of diligence factor did not weigh against plaintiffs

when “plaintiffs had not been dilatory in responding to defendants' motions for summary

judgment, in engaging in discovery, or in preparing their case. The district court noted that because

discovery would largely be transferable to the Connecticut action, plaintiffs' delay in filing the

motion to dismiss did not sufficiently prejudice defendant to preclude dismissal.” Rosenthal v.

Bridgestone/Firestone, Inc., 217 F. App'x 498, 502 (6th Cir. 2007); see, e.g., Bridgeport Music,

Inc. v. Universal-MCA Music Pub., Inc., 583 F.3d 948, 952 (6th Cir. 2009) (affirming finding the

delay or lack of diligence factor did not weigh against the plaintiff when “neither side has covered

themselves in glory when requesting and responding to discovery. Both sides could have acted

quicker and spent less in prosecuting and defending these cases. Therefore, neither party has

convinced the Magistrate Judge who is to blame for any delay.”); King v. Chase, No.

219CV02658JPMDKV, 2020 WL 8838089, at *3 (W.D. Tenn. Aug. 19, 2020 (“Plaintiff did not

fail to engage in discovery or delay the progress of the case.”)

In the case sub judice, nothing on the record suggests excessive delay or lack of diligence

on part of Plaintiffs. This case was removed to this Court in September 2023. (ECF No. 1). On

July 12, 2024, Defendants filed their motions for summary judgment. (ECF Nos. 30; 33; 35).

Plaintiffs requested extensions of time to respond extended the deadline to August 30, 2024. (ECF

Nos. 39; 44). Plaintiffs filed the Motion on August 28, 2024. (ECF No. 46). The longer delay

however, has been the discovery and dispositive motions. The preliminary pretrial order was

entered, and discovery was due by March 29, 2024, and dispositive motions due by April 26, 2024.

(ECF No. 12). Pomesky filed two joint motions for extension which were granted. (ECF Nos. 20;

26). Discovery was pushed to May 29, 2024, and dispositive motions by July 12, 2024. (ECF Nos.

21; 27).

There is no evidence, and defendants do not argue, that leading up to this Motion, Plaintiffs

have been “dilatory in responding[,] . . . in engaging in discovery, or in preparing their case.

Rosenthal, 217 F. App'x at 502. Furter, this motion only pertains to three of the eleven claims. This

court does not find the additional time it took for Plaintiffs to file the Motion to prejudice defendant

to preclude dismissal. The excessive delay or lack of diligence factor, thus, weighs in favor of

Plaintiffs.

c. Explanation for Dismissal

Turning to the third factor, this Court finds Plaintiffs have given sufficient explanation of

the need to take dismissal. Plaintiffs explain seeking dismissal of the federal claims due to their

complaint pleading in the alternative. The federal claims and the abuse of process claims are

inconsistent. Plaintiffs prefer to focus on its strongest claims, the state law claims, and realized the

need to take this approach after reviewing transcripts of recent depositions. (ECF No. 46 at 3).

Pomesky maintains this explanation is insufficient and Plaintiffs’ Motion is an attempt at

forum-shopping. (ECF No. 51 at 3). Pomesky argues Plaintiffs seek dismissal to avoid binding

precedent impacting Plaintiffs’ abuse of process claim. (Id.). Indeed, courts find plain legal

prejudice exists “where dismissal results in stripping a defendant of an absolute defense.”

Rosenthal, 217 F. App'x at 500. Further, “[a]t the point when the law clearly dictates a result for

the defendant, it is unfair to subject [the defendant] to continued exposure to potential liability by

dismissing the case without prejudice.” Id. (quoting Grover, 33 F.3d at 719).

Pomesky’s argument about Plaintiffs’ attempt to avoid legal precedent for the abuse of

process claim is irrelevant for the 41(a)(2) analysis. Plaintiff does not seek to dismiss the abuse of

process claim. Plaintiffs seek to dismiss their inconsistent claims and continue with litigation. This

is a sufficient explanation for the request for dismissal and weighs in favor of Plaintiffs.

d. Whether Motions for Summary Judgment Were Filed

As for the fourth and final factor, the existence of a pending motion for summary judgment

is a factor for consideration, but its existence does not necessitate a finding of plain legal prejudice.

Rosenthal, 217 F. App'x at 502. Here, Defendants have filed motions for summary judgment, but

briefing on those motions are stayed pending this Court’s resolution of this Motion. Thus, response

and reply briefing have not been filed and an oral argument has not taken place. This Court finds

this factor weighing slightly against Plaintiffs.

Dismissal without prejudice under Rule 41(a)(2) and Rule 21 is appropriate unless

Defendants suffer plain legal prejudice. The Grover factors to determine whether there is legal

prejudice favor granting Plaintiffs’ Motion. Indeed, Defendants filed motions for summary

judgment (ECF Nos. 30, 33, 35), but the effort and expense of Defendants will not go to waste as

only three claims will be dismissed, and Plaintiffs’ goal is to continue litigating the remaining

claims. Plaintiffs have also shown no lack of diligence in prosecuting the case. Further, Plaintiffs’

explanation for requesting a dismissal of the federal claims is sufficient: because of pleading in

the alternative and realizing after discovery that the inconsistent claims are weak, Plaintiffs seek

to dismiss those claims and pursue the strongest claims. This conserves this Court’s and the parties’

resources.

The Motion to Dismiss the federal claims is GRANTED.

B. Remand of State Claims

Plaintiffs also request that this Court remand all the remaining state law claims. (ECF No.

46 at 4). In support of this request, Plaintiffs reference the Sixth Circuit precedent that “[w]hen all

federal claims are dismissed before trial, the balance of considerations usually will point to

dismissing the state law claims, or remanding them to state court if the action was removed.”

Gamel v. City of Cincinnati, 625 F.3d 949, 952 (6th Cir. 2010) (quoting Musson Theatrical, Inc.,

89 F.3d at 1254–55). Also, this Court notes that “an amendment excising all federal claims divests

a court of supplemental jurisdiction over the remaining state claims” so the case must be remanded.

Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 33 (2025). Pomesky opposes remand,

arguing that this Court still has original jurisdiction. (ECF No. 51 at 5).

In one of the remaining state law claims, claim ten, Plaintiffs allege civil liability for

criminal acts under O.R.C. § 2307.60. Specifically, the complaint lists the criminal acts alleged

are in violation of: O.R.C. § 2905.12 (coercion); O.R.C. § 2921.45 (interfering with civil rights);

and O.R.C. § 2951.52 (using sham legal process). (ECF No. 2 ¶¶ 136–40). Pomesky urges this

court to find it has original jurisdiction since claim ten, in part, relies on violations of constitutional

civil rights pursuant to O.R.C. § 2921.45. Under O.R.C. § 2921.45(A): “No public servant, under

color of the public servant's office, employment, or authority, shall knowingly deprive, or conspire

or attempt to deprive any person of a constitutional or statutory right.” Pomesky’s concern is that

litigating this claim is essentially litigating the § 1983 claims dismissed by this Court. (ECF No.

51 at 3–4).

Plaintiffs’ claim for civil liability for criminal acts including violation of civil rights

involves a federal question. Federal district courts have “original jurisdiction” over cases

presenting a federal question and occurs in “civil actions arising under the Constitution, laws, or

treaties of the United States.” 28 U.S.C. § 1331. This jurisdiction may also include “state-law

claims alone, because one or more of them ‘necessarily raise[s]’ a ‘substantial’ and ‘actually

disputed’ federal question. Royal Canin, 604 U.S. at 26 (quoting Gunn v. Minton, 568 U.S. 251,

257 (2013)). Rather than argue claim ten is not covered by this Courts original jurisdiction,

Plaintiffs argue they do not “intend” to base claim ten on violation of federal civil rights. (ECF

No. 52 at 2). This “intention,” however, is not enough to divest this Court’s original jurisdiction.

Regardless of Plaintiffs’ current intention, “the determination of jurisdiction is based only

on the allegations in the plaintiff ’s ‘well-pleaded complaint’. . . . That longstanding rule makes

the complaint—the plaintiff ’s own claims and allegations—the key to ‘arising under’

jurisdiction.” Id. at 26; see, e.g., Majeske v. Bay City Bd. of Educ., 177 F. Supp. 2d 666, 671 (E.D.

Mich. 2001) (noting a federal court lacks jurisdiction where state law claim raising federal question

is based on alternate state-and federal-law theories even though “[t]he plaintiff avowed an intention

to state a separate claim . . . under both the [state] and United States Constitutions” because

“[u]nder the well-pleaded complaint rule, the plaintiff has stated a claim ‘arising under’ the laws

of the United States . . . .”).

Accordingly, this Court finds inapplicable the discretion to “decline to exercise

supplemental jurisdiction” because it has not “dismissed all claims over which it had original

jurisdiction.” 28 U.S.C. § 1367(c)(3). The motion to remand is thus DENIED.

IV. CONCLUSION

For the reasons set forth above, Plaintiff's Motion (ECF No. 46) is GRANTED in part

and DENIED in part. The Motion is granted as to the request for voluntary dismissal. The

following claims are hereby DISMISSED:

e Claim One for False Arrest under 42 U.S.C. § 1983;

e Claim Three for Malicious Prosecution under 42 U.S.C. § 1983; and

e Claim Eleven seeking to hold Defendant The Board of Trustees for Perry Township, Stark,

County, Ohio liable for Claim One and Claim Three under Monell and 42 U.S.C. § 1983.

The Motion is denied as to the request to remand the remaining claims. This Court granted a motion

to stay briefing on motions for summary judgment pending the resolution of Plaintiffs’ Motion.

(ECF No. 48). Thus, the stay is LIFTED. To allow Defendants a chance to make any desired

updates, the current Motions for Summary Judgment are DENIED as moot (ECF Nos. 30; 33;

35). Parties may refile or file a new/updated motion by no later than March 21, 2025. Response

briefs are due by April 4, 2025, and reply briefs is due by April 11, 2025.

IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE

DATE: March 11, 2025

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